The Icarus Effect

By Richard S. Levick, Esq.

The power of fables is that they are supposed to teach us lessons so we do not have to endure the pain of learning them ourselves. Unfortunately, the Icarus Effect – the result of defendants and their lawyers flying too close to the sun – is a result that we have to live through far too often.

The single most significant attribute that determines early on the success or failure of litigation and crisis communications is the arrogance of the defendant or their lawyer. And while sometimes it is designed as denial, it becomes arrogance if the denial inhibits our ability to act and react.

How Do We Recognize Arrogance?

If you are certain you are right. When we enter a room for the first time to meet with the corporate legal and communications team or just the outside lawyer, we can tell immediately if they want a team approach or if team members are protecting territory. If you are protecting territory – I can’t be wrong – the client loses. This is absolutely unacceptable. Nothing shows corporate disorganization and lack of trust more publicly than a crisis or litigation. Your team must have an open kimono approach. This is my point of view – what do you think?

If you do not know your communications counsel. We recently attended a meeting where in-house communications counsel were introducing themselves to their legal team for the very first time. Crisis and litigation is not the best time to get to know your team members. You may get lucky and trust is high, but getting to know them ahead of time, testing each other with non-critical tasks is a healthy way to build trust. Trust is the single most critical factor in litigation communications teams. Without it, you lose.

If others are intimidated from disagreeing with you effectively. Lawyers need to be a critical part of the communications team bus, but they cannot drive the bus. Without open discussion, the assumptions lawyers make are never in question. Winning a verdict in the court of law and saving $10 million is of little comfort when stock prices or reputations, worth ten times this are falling.

How can you tell if you are intimidating, beyond the obvious? Not committing to key meetings by arriving late and leaving early. No eye contact with peers. Bringing outside work to the meeting. Obsessing over your Blackberry (message: you are not important as my real work). The list goes on, but you get the picture. So does your team.

All of these things happen sometimes. It is when you do them as if it is acceptable that a problem occurs at the cost to the company or client.

If you confuse communications from outside lawyers with litigation communications. An assistant GC recently held up her Blackberry during a meeting and said “Our communications with outside counsel is great – they e-mail us all the time.” Lawyer to lawyer communications about the case has as much to do with litigation communications as screaming at the TV during a sporting event. Unless the team of professionals is discussing the matter, these are strictly courtroom discussions.

If you feel that you need to cross examine communications firms. Hiring processes, even those with the dreaded RFPs, should be team like sessions where trust is being established and you answer as many questions as you ask. Grilling potential outside counsel about the details of your case, before they have had the opportunity to review anything more than the public document, is a thinly veiled attempt to prove superiority early on. This is useless and defeats the need to develop a team approach from the beginning. Good outside communications counsel should have as many questions for you as you do of them. And, based on their experiences, they can bring many lessons to bear which have nothing to do with your industry, product or case, but like all good battlefield tested tactics, will work when properly adjusted.

If you only know how to ask questions from your expertise rather than from the audiences’ point of view. The Buddhists are right – seek first to understand, then to be understood. Target audiences do not care what you know. And they can never be “educated.” They are only willing to learn in a “teachable moment.” When you, the widget expert, ask detailed questions about widgets, rather than having a discussion about widget communications strategy, you are in effect ruling out the opportunity to learn from your audience.

If you are dismissive of all other points of view. It only takes one phone call or meeting with a defendant on the eve of incarceration or his family, to understand the devastation caused by the failure to use all tool available to a defendant. Communications strategies may not change the outcome, but it is a pretty big “if,” if you are the incarcerated individual.

Repeatedly, we find that most defense counsel, even those who are on the “Top Ten” list of any major city, are just not aware of all of the tools available to their clients and worse, do not consider the impact of these communications tools in the hands of plaintiffs counsel, NGOs and regulators. Perp walks caught on film are no accident. Brad attacks are the result of an articulated strategy. And there is no prosecutor whose first name is not “overzealous.”

If you do not believe in litigation communications. In an independent study conducted with the University of Pittsburgh School of Law retired judges said, “of course we are impacted by what we read in the newspaper.” Game, set, match. Judges and juries do not change their minds because of something they read, but they are, at the least, subtly influenced. And plaintiffs counsel is taking advantage of this every day. It is required by their contingency fee arrangement. You cannot believe in it all you want, but that doesn’t make it go away anymore than believing the world is still flat.

If you feel the purpose of team meetings is to prove you are the smartest person in the room. The smartest person in the room is the judge, jury, stockholder or customer. So you have already lost this war before the meeting has begun. What do they care about? What do they need to hear? What you have to say is interesting. What they have to say determine guilt or innocence, profit or loss.

You are looking for the “Silver Bullet.” Too often, after the guilty verdict is in or the bad facts are public, then lawyers turn to the communications counsel and say “fix this.” Often, litigation teams are overly confident because their outside communications team has a “plan” or a strategy that will make it go away. Brilliant strategy does not come in the form of plans. It comes from teams working together, revealing all of the facts so that you find the one or two nuggets that you can work with. It comes from hard work and sweat and usually begins early in the process. If you wait until after the legal process has gone south to hire or turn power over to the communications team, than all you are doing is hiring someone to take the bullet, not find one.

Anything you can do, I can do better. There are few defense counsels in Europe or the United States who know how to manage litigation communications. They can be counted in mere dozens. There are far more who think they know how to direct communications. Recently, on two very high profile cases, we saw the defense counsel quoted repeatedly in the major dailies of America making brilliant message points…for the plaintiffs.

If you think that litigation communications is limited to what the defendant or defense lawyer can say, then you are living in the dark ages. Litigation communications can consists of a myriad of strategies that most lawyers are at best vaguely familiar with. Do you have a blog strategy? Eighty-five percent of all journalists get their story ideas from blogs (and they haven’t looked at a news release in years). What is your litigation dark site strategy? How is it optimized?

From the Guantanamo detainees to Martha Stewart, defendants have begun controlling information through highly sophisticated Internet strategies which are neither complicated nor expensive, if defense takes the time to explore these. Do you have a “black bag” team available for investigations? Where are not talking about things you find in a library, but that kind of information which can turn a case. Who is your research company that can turn out an independent but favorable poll? Your think tank allies? The list goes on. Public opinion and the day’s news are only accidents when the defense teams are not in control. And if you are not managing it, it means the plaintiff, NGOs, or regulators are.

Article: The Icarus Effect
Author: Richard S. Levick, Esq.